BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
AB 2893 A
Assembly Member Mountjoy B
As Amended April 27, 2006
Hearing Date: June 27, 2006 2
Family Code 8
BCP:rm 9
3
SUBJECT
Sex Offenders: Child Custody and Visitation
DESCRIPTION
This bill would prevent registered sex offenders where the
victim was the individual's child or grandchild, from being
granted legal or physical custody or unsupervised
visitation with their children or grandchildren absent a
finding of no risk to the child's health, safety, and
welfare. A court finding no risk to the child must place
those findings on the record; failure to do so would make
the order void and unenforceable.
BACKGROUND
California law requires individuals to register as sex
offenders upon conviction of certain enumerated crimes.
Convictions that require registration as a sex offender
include rape, sexual battery, transporting a child for lewd
or lascivious acts, sexual assault of a child, incest,
sodomy and indecent exposure.
Recognizing the risk that some registered sex offenders
pose to minor children, previous legislation imposes
safeguards to prevent certain offenders from gaining
custody over minor children. Senator Torlakson's SB 594,
(Ch. 483, Stats. of 2005) effective January 1, 2006, raises
a presumption that a child who has unsupervised contact
with a felony registered sex offender, where the victim was
a minor, is at significant risk. Absent mitigating
(more)
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factors, SB 594 prevents a court from granting custody or
unsupervised visitation to those individuals.
AB 2893 would further restrict a registered sex offenders'
ability to parent or have unsupervised contact with their
own child or grandchild by requiring a finding of no risk
to that child prior to a grant of custody or visitation.
AB 2893 would apply to all registered sex offenders, whose
victim was their child or grandchild, regardless of when
that offense occurred, the type or severity of offense,
even when placement is in the best interests of the child.
CHANGES TO EXISTING LAW
Existing law requires a court to grant custody or
visitation according to the best interests of the child.
[Fam. Code 3040, 3100.]
Existing law requires a finding of no significant risk to
the child prior to a grant of custody or unsupervised
visitation to a registered sex offender, where the victim
was a minor, or to an individual convicted of child
abandonment, neglect, abuse or molestation. Findings of no
significant risk must be stated in writing or on the
record. [Fam. Code 3030.]
Existing law presumes a significant risk to the child from
unsupervised contact with a felony sex offender convicted
of offenses against a minor. [Fam. Code 3030.]
This bill would require registered sex offenders, whose
victim was their child or grandchild, to demonstrate no
risk to the child's health, safety, and welfare prior to a
grant of legal or physical custody, or unsupervised
visitation to their children or grandchildren.
This bill would require a court to state its reasons for
finding no risk to be in writing or on the record. Failure
to state the reasons behind a finding of no risk results in
the custody or visitation order being void or voidable.
COMMENT
1. Stated need for the bill
AB 2893 (Mountjoy)
Page 3
According to the author, the purpose of AB 2893 is "to be
sure as humanly possible that parents or grandparents who
have been convicted of sexually abusing their own
children and/or grandchildren are not given unsupervised
visits or custody of their children without a written
finding by the judge." Child Abuse Solutions, Inc.,
sponsor, states that "[i]ncestuous child sexual abuse is
much more damaging to children than a sexual assault by a
stranger."
Accordingly, the Junior Leagues of California State
Public Affairs Committee (SPAC), supporter, states that
"courts should carry a higher burden when placing a child
in the hands of a registered sex offender in these
cases." Another supporter, the Incest Survivors'
Speakers Bureau of Yolo County, contends that "[i]t is
unbelievable that Judges can use their 'discretion' to
place sexually abused children into the custody of their
abusers."
Moreover, the author questions "[h]ow it could possibly
be in the best interests of a child to be placed back in
the custody of a parent who has egregiously betrayed
their own child's basic trust?" Accordingly, the author
introduced the present bill to deal with perceived
deficiencies in existing law.
2. Revisiting the burden enacted by SB 594 (Torlakson)
Commencing January 1, 2006, SB 594 significantly raised
the bar for registered sex offenders who seek physical or
legal custody or unsupervised visitation of a child,
where the offender's victim was a minor. That bill
requires a court to find that those individuals do not
pose a significant risk to the child prior to a grant of
custody or unsupervised visitation. Furthermore,
unsupervised contact with a felony sex offender is prima
facie evidence that the child is at significant risk,
although factors can mitigate this presumption.
Thus, felony registered sex offenders, where the victim
was a minor, already are presumed to pose a serious risk
to a child. Any court granting custody to those
individuals must find affirmative factors demonstrating
that they do not pose a significant risk, place those
findings in writing and hold that custody with that
offender is in the best interests of the child.
AB 2893 (Mountjoy)
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AB 2893, introduced on February 24, 2006, revisits this
standard once again for registered sex offenders whose
victim was their child or grandchild. If those children
were minors at the time of the offense, that offender
would already be subject to the above newly enacted
standard. While there is little dispute about the need
to protect the children of California from sexual abuse,
no information has been introduced to demonstrate that SB
594's substantially increased standard is too lenient.
The numerous supporters focus on the damage that can be
caused by the return of a child to a sexually abusive
parent, and the high rate of recidivism among sexual
predators. None of the arguments or concerns are new or
specific to this bill. In fact, SB 594, along with the
increased burden on registered sex offenders, included
similar findings and declarations:
(a) The children of the State of California are
placed at risk when permitted to remain in
contact with a parent or caretaker who has
committed a sex crime.
(b) It is the policy of the State of California
that the health, safety, and welfare of children
shall be the court's primary concern in
determining the best interest of children when
making orders regarding custody or visitation.
(c) The perpetration of child abuse or domestic
violence in a household in which a child resides
is detrimental to the child.
(d) Custody and visitation orders shall be made
in a manner that ensures the health, safety, and
welfare of the child and the safety of all
family members.
(e) The purpose of this legislation is to ensure
that information regarding sex crimes is
appropriately considered by the court in child
custody matters and children are protected from
an at-risk environment.
. . .
Accordingly, the Legislature visited this issue last
session, and enacted the present burdens for registered
sex offenders. AB 2893 does not appear to respond to any
AB 2893 (Mountjoy)
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deficiency in the enforcement of that new law, but merely
attempts to tighten the heightened standard under the
belief that existing court discretion is too lenient.
SHOULD NOT THE LEGISLATURE WAIT TO SEE IF EXISTING LAW IS
DEFICIENT BEFORE INCREASING THE BARRIERS TO CUSTODY OF
ONE'S OWN CHILDREN OR GRANDCHILDREN WHEN IN THE BEST
INTERESTS OF THAT CHILD?
3. Individuals affected by AB 2893 must already pass SB
594's scrutiny
AB 2893 would only affect those registered sex offenders
who could have met the increased burden established by SB
594. For a court to grant custody to those individuals
under current law, those individuals would have to
demonstrate that they pose no significant risk to the
child in addition to finding that it is in the best
interests of the child to be placed with that individual.
The author's question, "[h]ow . . . could [it] possibly
be in the best interests of a child to be placed back in
the custody of a parent who has egregiously betrayed
their own child's basic trust?" demonstrates the high
burden imposed by current requirements. This bill would
deny parents and grandparents who could meet that high
burden the benefit of custody or unsupervised visitation
of their own children. This denial could force a court
to place a child, against their best interest, with a
foster family instead of with their own family.
As a result, AB 2893 could unnecessarily sever family
ties in cases where the parent or grandparent has
affirmatively demonstrated that they pose no significant
risk to the child.
4. Effect of requiring a finding of "no risk"
As stated above, existing law already requires registered
sex offenders where the victim was a minor to demonstrate
no significant risk to the child. AB 2893 would further
heighten the standard for those offenders whose victim
was their child or grandchild by requiring them to
demonstrate no risk to that child's health, safety or
welfare. Although this burden does appear to leave the
court some discretion to award custody or unsupervised
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visitation, in practicality it could deny appropriate
contact between the child and parent or grandparent even
when that contact is in the best interests of the child.
First, felony registered sex offenders, where the victim
was their minor child or grandchild, are already presumed
to pose a significant risk to any child who is permitted
unsupervised contact with them. By requiring that the
offender demonstrate that they pose "no risk" to the
child's health, safety or welfare, AB 2893 would require
a court to deny custody or unsupervised visitation if
that offender failed to entirely negate their presumed
risk. Anyone opposing the offender's custody or
unsupervised visitation could argue that the fact that an
individual is a registered sex offender, and thus
potentially the target of community disdain, is a risk to
a child's safety or welfare.
Second, demonstration of "no risk" to a child is very
difficult even when the individual is not a registered
sex offender. Almost every individual has some aspect of
their personality which could pose some risk to a child.
For example a biological parent may enjoy driving sports
cars, going hiking in the mountains, attend fireworks
demonstrations, or even go to water parks. Each of these
activities, if attended by a child, could pose a risk to
the child's health or safety: sports cars may increase
the risk of injury due to the driver's speed and
acceleration; hiking carries an obvious risk of physical
injuries due to falls, wildlife, and getting lost;
fireworks pose the risk of burns; and even water parks
pose a risk of injury due to both risk of drowning and
injuries caused by water slides. Thus, by requiring a
finding of no risk, AB 2893 would prevent otherwise
capable parents from having custody or unsupervised
visitation with their children.
5. Failure to state reasons for its findings in writing
or on the record makes the order, pursuant to the added
section, unenforceable
AB 2893 would additionally require a court to state its
reasons for finding no risk to the child or grandchild in
writing or on the record. Failure of a court to place
its reasons in writing or on the record makes an order
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granting custody or unsupervised visitation under the
above provision, void and unenforceable.
By making these orders void and unenforceable, it would
ensure that the reasons behind a finding of "no risk" are
actually stated in writing or on the record to make the
order enforceable. This proposed requirement would only
apply to the category of individuals covered by this
bill, registered sex offenders seeking custody or
visitation with their child or grandchild, whose previous
victim was their child or grandchild.
Support: Office of the Sheriff of San Bernardino County;
Junior Leagues of California State Public Affairs
Committee (SPAC); Incest Survivors' Speakers Bureau
of Yolo County; Child Abuse Solutions, Inc.; Law
Officers of Cynthia L. Spencer; Calegislation;
Mothers of Lost Children; California Family Council;
California Police Chiefs Association; California
Protective Parents Association; Los Angeles District
Attorney's Office; one individual.
Opposition: American Civil Liberties Union (ACLU);
California Attorneys for Criminal Justice (CACJ)
HISTORY
Source: Author
Related Pending Legislation: SB 1820 (Battin), would have
prohibited a court from granting
custody of, or unsupervised
visitation with, a child to a
registered sex offender if the victim
was a minor, unless the court finds
clear and convincing evidence that
there is no significant risk to the
child. (This bill is currently in
this committee.)
Prior Legislation: SB 544 (Battin, 2005), would have
absolutely barred custody or unsupervised
visitation for certain registered sex
offenders. (This bill was returned to
Secretary of Senate pursuant to Joint Rule
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56.)
SB 33 (Battin, Chapter 477, Statutes of
2005), revised penalties and proof
requirements for cases involving certain
registered sex offenders.
Prior Vote: Asm. Jud. (Ayes 9, Noes 0)
Asm. Floor (Ayes 74, Noes 0)
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